HQ 952103
June 18, 1993
CLA-2 CO:R:C:M 952103 AJS
CATEGORY: Classification
TARIFF NO.: 8419.81.50
District Director
U.S. Customs Service
Second and Chestnut Sts
Suite 102
Philadelphia, PA 19106
RE: Internal Advice; 19 CFR 177.1; 19 CFR 177.11; Rack and deck
ovens; industrial; HQ 088303; Heading 8514; Heading 8417; Heading
8516; Heading 7321; U.S. Precise Imports Corp.; Amersham Corp. v.
U.S.; Stella D'Oro Biscuit Co., v. U.S.
Dear Sir:
This is in reply to a request of June 23, 1992, submitted by
Kuehne & Nagel on behalf of Gemini Bakery regarding the tariff
classification of various ovens under the Harmonized Tariff
Schedule of the United States (HTSUS). Kuehne & Nagel originally
requested a binding ruling on the ovens, but we discovered through
the National Import Specialists (NIS) for this commodity that this
request involved ongoing transactions of the merchandise. Inasmuch
as 19 CFR 177.1 only permits a binding ruling to address
prospective transactions, we cannot therefore issue a ruling to
Kuehne & Nagel. However, the NIS has requested on behalf of the
field import specialists in your district that
we treat this request as an internal advice under 19 CFR 177.11.
FACTS:
The merchandise at issue are various electric, oil and gas-
fired ovens. The models 1000 LT Electric and 1000 LTG (gas
operated)) are rack ovens possessing a single chamber capacity of
up to 20 pans. The submitted literature states that they are ideal
for bakeries, supermarkets, restaurants, and institutional
facilities.
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The model 9100 Electric is a rack oven possessing a single
rack capacity of up to 20 pans. The submitted literature also
states that it is ideal for bakeries, supermarkets, restaurants,
and institutional facilities.
The "NOVA" model is an electric deck oven for baking and
cooking with a 1 pan to 24 pan capacity. The NOVA is also claimed
to be used in bakeries, supermarkets, restaurants, and
institutional facilities.
The models 9020 (electric), 9021 (oil), 9022 (gas-fired) are
rack ovens used for the baking of bread, rolls, cakes, pies,
cookies and the roasting of meats. They are claimed to be used by
medium size wholesalers (i.e., those who sell bakery items on the
premises as well as to other bakeries, supermarkets, restaurants,
etc.).
The models 9040 (electric), 9041 (oil), 9042 (gas-fired) are
also rack ovens used for the baking of bread, rolls, cakes, pies,
cookies, and the roasting of meat. They are claimed to be used by
medium size wholesalers as well as bakeries, supermarkets,
restaurants, etc.
ISSUE:
Whether the subject ovens are properly classified within
heading 8419, HTSUS, which provides for "[m]achinery, plant or
laboratory equipment, whether or not electrically heated, for the
treatment of materials by a process involving a change in
temperature such as heating, cooking, roasting . . . other than
machinery or plant of a kind used for domestic purposes . . ."; or
within heading 8417, HTSUS, which provides for nonelectric
industrial ovens; or within heading 8514, HTSUS, which provides for
industrial electric ovens.
LAW AND ANALYSIS:
Heading 8419, HTSUS, provides for ovens whether or not they
are electrically heated and other than of a kind used for domestic
purposes. In HQ 088303 (June 10, 1991), Customs addressed the
classification of convection ovens which were used for making
bread, croissants, and cookies in retail bakeries, supermarket in-
store bakeries, restaurants, cafes, convenience stores, etc. We
determined that these types of ovens are used in small scale retail
production and not for large scale (i.e., industrial) production.
Consequently, we ruled that these retail type ovens are
classifiable within subheading 8419.81.50, HTSUS, which provides
for other ovens for cooking or heating food. The subject ovens are
used in a similar manner as the above discussed convection ovens.
They are also used in bakeries, supermarkets, restaurants, and
other institutions for small scale production. It is evident -3-
that these ovens are all in the same class even though some of them
also may be used by wholesalers who bake for off
premises sale. Based on our earlier decision, we find that the
subject models are also classifiable within subheading 8419.81.50,
HTSUS.
Headings 8514 and 8417, HTSUS, each provide for industrial
ovens depending on their manner of operation. The subject models
do not satisfy this description. In HQ 088303, we stated that
industrial ovens involved large scale production. As stated
previously, the ovens at issue are used for small scale production
and not industrial production. Therefore, the subject models do
not satisfy the terms of either of these headings and cannot be
properly classifiable therein as industrial ovens.
The meaning of the term "industrial oven" has been discussed
by the Customs Court in Stella D'Oro Biscuit Co., v. United States,
79 Customs Court 28, C.D. 4709 (1977), aff'd 65 CCPA 52 (1978).
This case dealt with the classification of an oven used for the
manufacture of bakery products as a component of a "breadstick
production line". This production line included such items as
mixing equipment, conveyors, an oven and a packaging or wrapping
machine. The Court concluded that this type of oven was an
industrial oven. We find this situation to be a good example of
"large scale production". The subject models will not be used for
this type of production. Thus, we find this case instructive for
determining that the subject models are not industrial ovens.
It is argued that the term "industrial" should encompass
anything other than domestic. This argument would seem to have
merit. However, if this were the case, then it would seem that all
ovens would be classified within either headings 8514 (i.e.,
electric industrial) 8417 (i.e., nonelectric industrial), 8516
(i.e., electrothermic domestic) or 7321 (i.e., nonelectric
domestic). This result would render subheadings 8419.81.10 and
8419.81.50, HTSUS, nullities inasmuch as they specifically provide
for non-domestic ovens. It is presumed that Congress would not
enact unnecessary language. U.S. Precise Imports Corp., 458 F.2d
1376, 1380, 59 CCPA 113, C.A.D. 1050 (1972).
It is also suggested that subheadings 8419.81.10 and
8419.81.50, HTSUS, are intended to include ovens that are not used
in any industry and also are not domestic, for example, those used
on private yachts and planes. As discussed
previously, we partially agree with this statement in the sense
that the above subheadings provide for both nonindustrial and
nondomestic ovens. However, we disagree with the assertion that
the term "industrial" encompasses
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anything which is not domestic. As stated previously, industrial
involves large scale production. Therefore, we are of the view
that ovens used on private yachts and planes as well as those used
in bakeries, restaurants and hotels are nonindustrial and
nondomestic and provided for within subheading 8419.81, HTSUS.
This conclusion is supported by the nonbinding statistical
breakouts for this subheading which provides for items used in
aircraft and restaurants, hotels or similar locations.
HQ 082339 (January 24, 1990) is cited as support for the
proposition that the term "industrial" is not limited to large
scale production. In this case, we ruled that merchandise used to
prepare food in a retail food service
establishment was classifiable as machinery for the
industrial preparation of food. Inasmuch as we are not required to
compare similar headings as those involved here, that case is
inapposite.
Reference is also made to the Standard Industrial
Classification Manual published by the Office of Management and
Budget for the proposition that the term "industrial" is not
limited to large scale production. However, it is well established
that statutes, regulations and administrative interpretations
relating to "other than tariff purposes" are not determinative of
customs classification disputes.
Amersham Corp. v. United States, 564 F. Supp 813, 817, 5 CIT 49
(1983). Classification under the HTSUS is first determined by the
terms of the headings. General Rule of Interpretation 1. As
stated previously, the terms of the various headings relating to
ovens leads to only one conclusion regarding the scope of the term
"industrial" ovens. Thus, the above non-tariff reference
concerning industrial is not determinative in this instance.
HOLDING:
The subject Gemini oven are classifiable within subheading
8419.81.50, HTSUS, which provides for other ovens for cooking or
heating food, currently duty-free under General Column 1. Please
forward a copy of this decision to Mr. Ernest Ferrante of Kuehne &
Nagel, 10 Exchange Place - 19th floor, Jersey City, NJ 07302.
Sincerely,
John Durant, Director
Commercial Rulings Division